Common law offence At
common law, the crime of conspiracy was capable of infinite growth, able to accommodate any new situation and to criminalize it if the level of threat to society was sufficiently great. The courts were therefore acting in the role of the
legislature to create new offences and, following the
Law Commission Report No. 76 on Conspiracy and Criminal Law Reform, the
Criminal Law Act 1977 produced a statutory offence and abolished all the common law varieties of conspiracy, except two: that of conspiracy to defraud, and that of conspiracy to corrupt public morals or to outrage public decency.
Conspiracy to defraud Section 5(2) of the
Criminal Law Act 1977 preserved the common law offence of conspiracy to defraud. Conspiracy to defraud was defined in
Scott v Commissioner of Police of the Metropolis per Viscount Dilhorne:
Conspiracy to corrupt public morals or to outrage public decency Section 5(3) Criminal Law Act 1977 preserved the common law offence of conspiracy to corrupt public morals or of conspiracy to outrage public decency. Section 5(1) of the
Criminal Law Act 1977 does not affect the common law offence of conspiracy if, and in so far as, it can be committed by entering into an agreement to engage in conduct which tends to corrupt public morals, or which outrages public decency, but which does not amount to or involve the commission of an offence if carried out by a single person otherwise than in pursuance of an agreement. These two offences cover situations where, for example, a publisher encourages immoral behaviour through explicit content in a magazine or periodical, as in the 1970 case of
Knuller (Publishing, Printing and Promotions) Ltd v Director of Public Prosecutions, which ultimately was decided in 1973 by the House of Lords. In the 1991 case of
R v Rowley, the defendant left notes in public places over a period of three weeks offering money and presents to boys with the
intention of luring them for immoral purposes, but there was nothing lewd, obscene or disgusting in the notes, nor were they printed by a news magazine at the behest of Rowley, which would have invoked the element of conspiracy. The judge ruled that the
jury was entitled to look at the purpose behind the notes in deciding whether they were lewd or disgusting. On appeal against
conviction, it was held that an act outraging public decency required a deliberate act which was in itself lewd, obscene or disgusting, so Rowley's motive in leaving the notes was irrelevant and, since there was nothing in the notes themselves capable of outraging public decency, the conviction was quashed.
Statutory offence This offence was created as a result of the Law Commission's recommendations in their Report, Conspiracy and Criminal Law Reform, 1976, Law Com No 76. This was part of the commission's programme of codification of the criminal law. The eventual aim was to abolish all the remaining common law offences and replace them, where appropriate, with offences precisely defined by statute. The common law offences were seen as unacceptably vague and open to development by the courts in ways which might offend the principle of certainty. There was an additional problem that it could be a criminal conspiracy at common law to engage in conduct which was not in itself a criminal offence: see Law Com No 76, para 1.7. This was a major mischief at which the 1977 Act was aimed, although it retained the convenient concept of a common law
conspiracy to defraud: see Law Com No 76, paras 1.9 and 1.16. Henceforward, according to the Law Commission, it would only be an offence to agree to engage in a course of conduct which was itself a criminal offence. Section 1(1) of the
Criminal Law Act 1977 provides: {{blockquote|style=font-size: initial|if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either – Section 1A (inserted by the
Criminal Justice (Terrorism and Conspiracy) Act 1998, s. 5) bans conspiracies part of which occurred in England and Wales to commit an act or the happening of some other event outside the United Kingdom which constitutes an offence under the law in force in that country or territory. Many conditions apply including that prosecutions need consent from the
Attorney General for England and Wales.
Exceptions • Under section 2(1) the intended victim of the offence cannot be guilty of conspiracy. • Under section 2(2) there can be no conspiracy where the only other person(s) to the agreement are:{{ordered list| list_style_type=lower-alpha
Mens rea There must be an agreement between two or more persons. The
mens rea of conspiracy is a separate issue from the
mens rea required of the substantive crime.
Lord Bridge in
R v Anderson, quoted in
R v Hussain, said:
Lord Bridge in
R v Anderson also said: It is not therefore necessary for any action to be taken in furtherance of the criminal purpose in order for a conspiracy offence to have been committed. This distinguishes a conspiracy from an attempt (which necessarily does involve a person doing an act): see
Criminal Attempts Act 1981.
Things said or done by one conspirator Adrian Keane in
The Modern Law of Evidence, quoted approvingly by
Lord Steyn in
R v Hayter, wrote:
History According to
Edward Coke, conspiracy was originally a statutory remedy against false accusation and prosecution by "a consultation and agreement between two or more to appeal or indict an innocent man falsely and maliciously of felony, whom they cause to be indicted and appealed; and afterward the party is lawfully acquitted". In ''
Poulterer's Case'', 77 Eng. Rep. 813 (K.B. 1611), the court reasoned that the thrust of the crime was the confederating of two or more, and dropped the requirement that an actual indictment of an innocent take place, whereby precedent was set that conspiracy only need involve an
attempted crime, and that the agreement was the act, which enabled subsequent holdings against an agreement to commit any crime, not just that originally proscribed. nine students, who were nationals of
Sierra Leone, appealed their convictions for conspiracy to trespass, and unlawful assembly. These persons, together with others who did not appeal, conspired to occupy the London premises of the High Commissioner for Sierra Leone in order to publicize grievances against the government of that country. Upon their arrival at the commission, they threatened the caretaker with an imitation firearm and locked him in a reception room with ten other members of the staff. The students then held a press conference on the telephone, but the caretaker was able to contact the police, who arrived, released the prisoners, and arrested the accused. In this case the Court felt that the public interest was clearly involved because of the statutory duty of the British Government to protect diplomatic premises. Lauton J delivered the judgment of the Court of Appeal dismissing the appeal from conviction.
Conspiracy to corrupt public morals and conspiracy to outrage public decency These offences were at one time tied up with prostitution and homosexual behaviour. After the Second World War, due to the fame of several convicts, the
Wolfenden report was commissioned by government, and was published in 1957. Thereupon came the publication of several books, both pro and contra the report. Of these books we can isolate two representatives:
Lord Devlin wrote in favour of societal norms, or morals, while
H. L. A. Hart wrote that the state could ill regulate private conduct. In May 1965, Devlin is reported to have conceded defeat. The
Street Offences Act 1959 prohibited England's prostitutes from soliciting in the streets. One Shaw published a booklet containing prostitutes' names and addresses; each woman listed had paid Shaw for her advertisement. A 1962 majority in the House of Lords not only found the appellant guilty of a statutory offence (living on the earnings of prostitution), but also of the "common law misdemeanour of conspiracy to corrupt public morals". In the case of
Knuller (Publishing, Printing and Promotions) Ltd v DPP, which was decided in 1973 in the
House of Lords, the appellants were directors of a company which published a fortnightly magazine. On an inside page under a column headed "Males" advertisements were inserted inviting readers to meet the advertisers for the purpose of homosexual practices. The appellants were convicted on counts of • conspiracy to corrupt public morals, and • conspiracy to outrage public decency. The appeal on count 1 was dismissed, while the appeal on count 2 was allowed because in the present case there had been a misdirection in relation to the meaning of "decency" and the offence of "outrage". The list of cases consulted in the
ratio decidendi is lengthy, and the case of
Shaw v DPP which reached the House of Lords in 1974, it was unanimously held that
conspiracy to effect a public mischief was not a separate and distinct class of criminal conspiracy. This overruled earlier decisions to the contrary effect. The Law Commission published a consultation paper on this subject in 1975.
Conspiracy to murder The offence of
conspiracy to murder was created in statutory law by section 4 of the
Offences Against the Person Act 1861. ==Northern Ireland==